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Friday, October 29, 2010

Guardianship in blended families

Any parent making a Will is encouraged to appoint someone to become the guardian of the minor children in the event that both parents pass away. This is true of separated or divorced couples, as well as married couples. If one parent dies, the surviving biological parent has the right of custody of the children, so the guardianship appointment is really a back-up in case of both parents should die.

What happens when one of the parents re-marries after a divorce? Let's say that Eloise, mother of Jamie (5) and Sonia (7) has just married again. Eloise's Will is revoked automatically so any guardianship appointment in it is also revoked. The fact that Eloise has remarried doesn't affect the right of Jamie and Sonia's father to be their guardian should Eloise pass away. If Eloise's new husband adopts Jamie and Sonia, then their father's right would be extinguished. However, in most blended families the children are not adopted, largely because the biological parent (in this case the kids' father) won't agree to it.

As Eloise's Will has been revoked, she has to make a new one. She should name a guardian in it to look after the children should she pass away (and her ex had also passed away). Should she name her new husband? When I ask newly remarried parents this question, the answer is usually "not yet". The parent wants the new spouse to be the guardian at some point, but feels that the point hasn't yet arrived. And when does it arrive? Parents are pretty vague about that, but are adamant that the new spouse can't be named as guardian until the children and their new step-parent have had time to forge a strong relationship.

In the meantime, parents say, they'd rather name someone else as guardian. Eloise, for example, could name her sister, brother or close friend. They want to choose someone that their children already know and love.

This of course means that the Will is going to need amendment at some time in the future, but that is a small price to pay for the peace of mind of naming the right guardian.

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